RULES OF SOCIAL ORDER

Social Rules : Legal, Moral , Religious , Customary

Law . The collection of legal rules. (the definition by Kemal Gözler)

Legal Positivism : Belli bir zaman ve toplumda hukuk kurallarının bütünü.

Natural Law Tradition : Hukuk pozitivizmine karşı insanın akılla erişebileceği , yazılı
olmayan , hukuk kuralı.

Legal Rules (Hukuk Kuralları)

They involve commandments and prohibitions (normatively)

They aim to regulate human behavior

They are imposed by the state

The legal rules are instituted state by the relevant organs the executive or legislative

They are sanctioned by coercive measures

Moral Rules (Ahlak Kuralları)

Commandments and prohibitions

Regulate human behavior

The maker – individual’s own conscience (can be universal rules)

The sanction of moral rule is the guilty conscience

Religious Rules (Din Kuralları)

Commandments and prohibitions

Regulate human behavior

Established by the divine (will of God)

The sanction is enforced in afterlife earthly effect is fear from burning in hell
Customary Rules (Örf-Adet Kuralları)
Commandments and prohibitions

Regulate human behavior

The maker is social environment

The sanction can be blame , condemnation , beat , lynch etc.

Similarities Differences
Commandments and prohibitions Sanctions by different institutions

Regulate human behaviors The makers,

Sanctions but by different institutions -Religious : divine will of the god

-Moral : individual’s own conscience

-Customary : the society itself.

A conflict between moral and legal rules

The moral rules referred directly in legal rules.

Moral rules may be converted into law when the legislative kindly

sneaks a piece of legislation incorporating it.

The relations between Law and Justice

The aim of the law is to fair, corrective outcome of a legal dispute.

The legal rules are expected to achieve the ends of justice

in other words it means that the application of legal norms should be the proper and fair
administration of laws. (procedural law=usul hukuku)
The Relations Between Religious and Legal Rules

- The significance of religion , which dominates social life through human history

- why the separation of religious rules and legal rules ?

The answer: The social change = human being , human nature , society

Ahlak kurallarının yetmemesi, hukuk kurallarının ortaya çıkması, toplumsal ilişkilerin değişip
dönüşmesinden modernleşme, teknoloji, yönetim anlayışları, Din kurallarının değişken
koşullara adapte olamaması.

- The separation does not mean that legal rules ignore the religious issues.

The most important example is the protection of religious beliefs by the law.

THE SOURCES OF LAW

- Constitution - regulations - customary

- by laws - statuary decrees - judicial decisions

- statute - general principles general of law - doctrine

The Written and Unwritten Sources

The Written Sources

1) The Constitution = The constitutional rules involve the establishment and

functioning of the fundamental organs of state (the executive, the legislative, the judiciary)

Moreover the rules about the fundamental rights and liberties of the citizens.

The revolution , the (civil) war , the coup d’etat (darbe)

Constitutional amendments = the rules relating to cons. amendment’s is written within the
constitution itself.
Two Categories :

1. Flexible constitutions

2. Rigid constitutions
The authority of constitutional amendments is given to the parliaments. (TGNA)

The authority of constitution maker called the constituent power

2) Statues (Laws , Acts) =

There are features of the statues = the general character

The content of the law concerns with every possible situation.

Written [ published (in the official gazette) ]

The continuous this means all the statues strive to be applied at anytime

The procedure of legislation = the parliament

a) Proposition Bill = the statutes are proposed by either Council of ministers or deputies.

Government Bill = kanun tasarısı , Bill = kanun teklifi

b) Debate (Deliberation)

The deputies deliberate the bills on the parliament

The debate are regulated by the law called standing orders of Assembly

c) The adaptation: After the deliberation the deputies have to vote the bills.
d)The publication: The bills approved by the parliament is published in the official gazette
by the president.

Judicial review = The president and the public prosecutor can make a plea of
unconstitutionality of the law to the Constitutional court or the judges can make a plea when
they deal with the relevant cases.

The society’s rejection of the implementation of the relevant law

The entry into effect date:

May the law contain the entry into effect date in the relevant article

If the may not determine the date the law enters into effect us days after publication.

3) Statuary Decrees
a) Ordinary statuary decrees

-The authority is given by parliament to the council of minister through the empowering law.

-The content of ordinary is limited by the empowering law to the certain extent/areal issue.

-After the publication the ordinary statuary decree is deliberated and voted by the part.

-Cannot be about fund. liberties and rights.

b) Emergency Statuary Decrees

There is an emergency situation: the council of ministers under “the chair person ship” of the
President may enact the emergency decrees even including the limitations to fundamental
liberties and rights.
4) International Treaties
- Ratification

- Approval by the parliament

The authority to sign a treaty is given to the President, the Prime Minister and the foreign
Minister.

A person authorized by the Council of Ministers

Unwritten Sources
- Customary Law

Antiquity = the relevant has been existed since old times. [Material element]

Continuity = This behavior has been repeated regularly opinion necessitates (the general
belief there is a common belief cannot the relevant rule that everyone has to obey) [moral
element]

State Sanction = In order to be a part of the legal order (legality argument) this rule is
recognized and sanctioned by the state.

Sources of law can be divided in two :

1-) Primary Sources
Written sources = constitution, law(statute) , statuary decrees, international treaties,
regulations, by laws.

Unwritten sources = customary rules

2-) Subsidiary Sources

- Doctrine: It is a source that rulers could use it scientific problems but don’t have any
obligation to accept it. (öğreti)

- Judicial Decision:
a) Looking for the relevant individual cases

b) The unified decisions of supreme courts

- Precedents: It is a decision that resultant of other courts overcome. (emsal)

- Case Law : most important in the common law system. (Eğer başka bir malzemeden
alınan karar olduğu bildiriliyorsa buna <case law (içtihadi karar)> denir.

*advisory (subsidiary)> tavsiye niteliğinde

= differences between two of them.

*mandatory (primary)> uygulaması zorunlu

Hierarchy of norms ( Hans Kelsen )

Hierarchical order between written sources

Branches of Law Separation Public and Private Law

Public sphere related to common interests of society

Private sphere related to individual interests

The public law : Distinguished by the predominance of the state

The private law : Equality before law, the relations based on the mutual consent of parties.

Other Classifications:

- Domestic (municipal, national): Legal issues within state

- International law

- Substantive (maddi): legal rules that create rights

- Procedural law (usuli): provide method for punishment

These are on the type of political jurisdiction (the federal state)

Seperation of political from economic

The state is an organized force which have capacity to coerce the individuals. While the
economic relations is based on mutual consent excluding the coercion.

PUBLIC LAW
Theories:
1- Interest Theory (Ulpian):

- Public law > society interest

- Private law > individual interest

2- Theory of Subject-Matter:

- The character of parties involved in a given legal relation

- The sovereign capacity of the state (public state)
- The relations between individuals (equal)

Fundamental Concepts:

The State: political community (Weberian definition)

- population (permanent)

- territory (defined)

- sovereignty (supreme power)

a) Population: The legal link > the nationality (citizenship)

1) Child nationality is determined by the place of birth

2) by parent’s nationality

3) Formal application

b) The Territory: Means a defined area of surface land

c) The Sovereignty: The spiritual element (Jean Badin, 16th cent.)
Definition: the absolute and uncontrollable power of the march.

 The political systems of modern states are on the principle of the rule of laws.
 All powers are limited by the laws

The General will > law as an expression of the general will ( people’s will)

1) The Internal Sovereignty: No power above the state within the defined territory.

( exception: In the fields of human rights law the supranational organizations such as the EU)

2) The External Sovereignty: Non interface into internal affairs.

Branches of Public Law:

* Fundamental rights and liberties.

* The structure of the state and its functions.

1) Constitutional Law (Anayasa Hukuku):

This regulates the social relations directly connected to the exercise of state power.

 Constitutionalism: Political Struggle during 19th century.

The aim is the limitations of arbitrary rules of political authorities. (Magna Carta, 1215,
England)

 Constitutional Court

2) Administrative Law (İdari Hukuk):

This is regulations between administrative authorities and individuals, the legal statutes of
government status

- the rights and liabilities with these officials.

The Concept of public service:

 From physical of the members to social security of them. (welfare state)

 The discretionary power of public officials. (civil servants)

The financial means required for carrying out government functions.

3) Criminal Law (Ceza Hukuku):
No person is permitted to take the law into his own hands and revenge

The administrative and judicial authorities are competent to ensure the general public and if
necessary to punish wrong does according to law.

- Criminal Offences: Certain matter public concerns.

Against to society and deal in criminal court.

Definition of Crimes
-The act or a mission to act (actus reus > The material element of the crime)

-The requisite intention (meus rea, guilty mind)

-The illegality acting against the law (except a legistimate self defensed in currently in force)

Principle of Crime
No crime can be established (ex past factor)

No crime and punishment can’t be created by administrative regulations and by laws (made
by the executive)

The legal security of the person:

Protect the real persons (or legal) from any rule of the executive.

The judicial reviews of administration:

Punishment: It must be specifically defined by law.

There can be no punishments without law.

Judges are given some discretion in determining the punishment within the limits of law.

The aims of punishment

To avenge the crime by imposing a sentence of death exile or torture.
Modern Legal System
Improsenment, a judicial fine enforcement of obligations

Two approaches to the conception of punishment

1) to deter the particular from future criminal conduct

[special determinacy, the penitentiary system (ıslah evi, hapishane) ]

2) to deter others who might be tempted to commit crime.

[general determinacy, to protect the general public]

4) Procedural Law ( Usul Hukuku):

- How the laws are to be supplied and by whom?
- The machinery of justice
- The rules are applied by during the cases

a) Civil Procedures:

In the field of private law.

Parties, the real or legal persons, the claimant and the defendant.

b) Criminal Procedures:

In the field of public law.

The public and the legal or real person.

……..(?), the accused, the burden proof, the lawful neutral judge

5) Public International Law (Devletler Hukuku):

This regulates relations between states within international organizations and individuals
notably in the field of human rights law.
 The Sources of International Law

 International Conversation
 International customs
 The general principles recognized by the civilized nations
 Judicial decisions and the teachings of the scholars

Jus cogens = the customary practice of states among themselves (peremptory norms.)

Certain rules of customary international law (the prohibition of slave trade, torture.)

Private Law
This relations and conflicts among individuals as real person’s and also legal person’s.

 Principle of the equality before the law

The parties > equal entities despite the obvious inequalities based on the social structure.

 Basis of the private legal relations

A voluntary agreement > between the parties

* in private law it is “gönüllü”

* in public law it is “zorunlu”

 The state can be subjected to the private law

As the legal person > equal to other party

The relations which have commercial nature

 The issue

The nature and degree of personal liability arising from certain act, mostly contracts
Branches of Private Law:

1) Civil Law:
“family, marriage, divorce, personality, properties, obligations, rights, inheritance”

Private sphere of life, particularly economic relations.

* 2002 Turkish Civil Code: inspired, imitated by Swiss Civil Code

* 2011 Code of Obligations: new concepts such as the consumer protection electronic
signature

2) Law of Person:
The legal existence of a legal person

- Every person can be subject’s rights under the law everyone is entitled to rights
recognized by the modern legal system.
- Only human beings can be subjects

Animal and things can only be the object over which rights is exercised

- The birth and death

- The creations and termination of personality
- The legal capacity (only a person who has legal capacity may enjoy certain rights) of
the person
- The protection of dignity and honor of people

Tüzel Kişilik: Legal persons who are created by the function of the law.

- Constitutor
- Real people

3) Law of Inheritance:

- Who will inherit the property the decreased

- How state will be divided
- Statutory heir and appointed heir

Turkish law > certain restrictions on the freedom of testamentary disposition (the will)

- Reserved compulsory portions

 4) Law of Obligations:
The formations, validity and enforceability of obligations through legal procedures > parties >
the debtor and creditor

 Contractual origin
 Obligations in tart
 The mutual consent of parties

Consent must be free of any defects such as error, fraud, willful, deception or threat.

The legal capacity of parties (legal subject motto)

 Connection aspect

Formalities income cases

 Obligation Indore(?)

Derives from an obligation imposed the laws for person to act in a prudent manner and not
cause injury to the personal and property rights of another.

Obligation is raising from unjust enrichment.

5) Commercial Law:
The relations beyond the civil law within the private sphere.

Commercial relations, commercial enterprise

 Turkish Commercial Code

In the instances where is no provision of the written law of commercial nature applicable to
the case at hand court should be declined in academic with commercial system.

6) Private International Law

The conflict of laws problem against states.

 The determination of which state’s will have jurisdiction to decide case.

 Which state’s substantive law will be applied to legal problem.